For the Defense - Vol. 9, Issue 4 - 23

adequate remedy in many jurisdictions across the state so puts
the burden on probation departments to identify eligible parties
and grants automatic review. Finally, the PRC process tries to
ensure that termination will be granted where it is warranted
by limiting the ability of judges to overrule recommendations
by probation for termination. Note, however, nothing about
the creation of this process prevents defense counsel from filing
a motion for early termination of probation or modification of
the conditions of probation.16
Eligibility for Review - Assuming you are on probation for
at least 12 months, you are eligible for a probation review
conference based on the following:17
* For sentences with misdemeanors only: defendants
must have served 2 years of probation or 50% of
the probation sentence, whichever is sooner.
*
For sentences with at least one felony charge:
defendants must have served 4 years of probation
or 50% of the probation sentence, whichever is
sooner.
* For probation tails that follow a state sentence: If
at least 12 months has been served on state parole
without a violation, then the defendant is eligible
12 months earlier.
* Accelerated review: defendant is eligible 6 months
earlier if he has completed school, vocational
or technical program; received an occupational
license; etc.18
* Offenders are not eligible for a PRC if they
were convicted of a homicide, crime of violence,
SORNA/registration offense, simple assault where
the victim is a family member, or stalking.19
Process for Probation Review Conferences
*
Note that if no one objects, the court
is not given an opportunity to overrule
the recommendation or make an
independent determination whether the
recommendation is appropriate (subject
to the provisions of 9974.1(f), (g)).
Termination of Probation
Probation shall be terminated by the court unless
it
finds
(1) by clear and convincing evidence that the defendant created
an identifiable risk to public safety while on supervision;
(2) the defendant has not completed required programming and
termination would prevent the defendant from accessing that
treatment; or (3) the defendant owes restitution.26,27
Probation also may not be terminated by the court if the
defendant was convicted of a new crime while under supervision
or committed certain enumerated technical violations within
the past six months as laid out in 9774.1(g)(1)(ii)-(iii). If the
defendant is not eligible to have probation terminated due to
a technical violation, a probation review conference shall be
held six months after the date that the enumerated violation
occurred.28
Modification of Probation
In addition to recommending termination, probation officers
can also recommend that probation be continued with same
conditions or probation be continued with modified conditions.
A recommendation that probation be continued with lessened
conditions poses no issues under Section 9771 or more
generally. A recommendation that probation be continued
with increased conditions, however, contradicts not only the
plain language of Section 9771(a)29
, but also potentially with
Timing:20 The court shall hold a probation review
conference no later than 60 days from the date
the defendant is eligible. If a conference has not
been set, a defendant or defense counsel may
demand one in writing.
*
Probation Status Report: Supervising agency shall
complete a probation status report that is to
be submitted to defendant, defense counsel of
record, court, district attorney's office, and any
victim registered with Office of Victim Advocates.
The report shall include a summary of supervision,
as well as a recommendation that: probation be
terminated, probation be continued with same
conditions to remain, or probation be continued
with modified conditions.21
* Objections: The commonwealth and defense have
30 days to object or respond to the report.22
The
victim has 30 days to provide commentary.23
* If anyone files an objection, a hearing
shall be scheduled.24
* If no objection filed, the PRC shall be
deemed waived and the court shall
enter
an
order
memorializing the
recommendation, even if the sentence
was the result of a negotiated plea25
.
that of Section 9771(d), which bars the increase of conditions
without a hearing. As defense counsel, we have an affirmative
obligation to object to any recommendation from the probation
department that would increase conditions without a hearing
or otherwise violate the requirements of Section 9771.
Post-Sentence Reviews
While probation review conferences are only afforded to
those sentenced on or after the effective date of the statute,
the Act does make some allowances for people currently serving
probationary sentences. While it does not lay out a process for
review, it does grant a right of review:
Section 7(1): the courts shall ensure that the
probation
of
all individuals
sentenced
or
resentenced prior to the effective date of this
section are reviewed to determine whether
the individuals should be considered for early
termination of probation or modification of the
terms and conditions of probation.
Review is to occur at the later of one year after the effective
date or when they would otherwise be eligible.30
similar to that for PRCs but not exactly the same.31
Vol. 9, Issue 4 l For The Defense 23
Eligibility is
For example,
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